Citation Nr: 1427094
Decision Date: 06/16/14 Archive Date: 06/26/14
DOCKET NO. 11-18 394 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Louis, Missouri
THE ISSUES
1. Entitlement to service connection for bilateral foot numbness.
2. Entitlement to service connection for a right leg stress fracture or residuals of such fracture.
3. Entitlement to an increased initial evaluation for post-operative four compartment fasciotomy, compartment syndrome of the left leg, currently evaluated at 10 percent.
4. Entitlement to an increased initial evaluation for post-operative four compartment fasciotomy, compartment syndrome of the right leg, currently evaluated at 10 percent.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
ATTORNEY FOR THE BOARD
K. Anderson, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 2005 to January 2009.
This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision of the Department of Veterans' Affairs (VA) Regional Office in St. Louis, Missouri.
The Virtual VA and VBMS files have been reviewed.
The Veteran indicated on his VA Form-9 that he would like Board Hearing. However, an August 2012 letter sent by representative withdrew the Veteran's hearing request, but requested that the Board continue with the adjudication of his claim. As such, the Veteran's hearing request is deemed withdrawn. 38 C.F.R. § 20.702(e) (2013).
FINDINGS OF FACT
1. The area of the left leg that is devoid of sensation is contemplated by the rating for the scar of the left leg with peripheral neuropathy.
2. The Veteran is not diagnosed with a neurological disability of the left foot, evidenced by symptoms of bilateral foot numbness, for which he is not already service connected.
3. The Veteran is not diagnosed with a neurological disability of the right foot, evidenced by symptoms of bilateral foot numbness, for which he is not already service connected.
4. The Veteran does not have a current diagnosis of a right leg stress fracture and there is no evidence that he is suffering from residuals of a right leg stress fracture for which he is not already service connected.
5. The Veteran's service-connected bilateral leg compartment syndrome disability is manifested by subjective complaints of pain and numbness, with limited function due to pain on repetitive use with evidence of loss of muscle strength, function, or substance; a moderately-severe impairment of Muscle Group XI is shown.
CONCLUSIONS OF LAW
1. The criteria for service connection for bilateral foot numbness have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).
2. The criteria for service connection for right leg stress fracture or residuals of a right leg stress fracture have not been met. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2013).
3. The schedular criteria for a rating of 20 percent for compartment syndrome of the left leg have been met. 38 C.F.R. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5311 (2012).
4. The schedular criteria for a rating of 20 percent for compartment syndrome of the right leg have been met. 38 C.F.R. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.71a, Diagnostic Code 5311 (2012).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
Analysis
Under 38 U.S.C.A. § 7104, Board decisions must be based on the entire record, with consideration of all the evidence. The law requires only that the Board address its reasons for rejecting evidence favorable to the claimant. Timberlake v. Gober, 14 Vet. App. 122 (2000). The Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000).
VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant.
Service Connection
The Veteran seeks service connection for bilateral foot numbness and residuals of a right leg fracture. Having carefully considered the claim in light of the record and the applicable law, the Board is of the opinion that the preponderance of the evidence is against the claims, and the appeals will be denied.
In order to establish service connection for the claimed disorder, there must be competent and credible evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999); see also Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006).
It is VA's defined and consistently applied policy to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt it is meant that an approximate balance of positive and negative evidence exists which does not satisfactorily prove or disprove the claim. Reasonable doubt is a substantial doubt and one within the range of probability as distinguished from pure speculation or remote possibility. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2013).
Numbness of the Bilateral Legs
In the present case, the Veteran was awarded service connection for compartment syndrome of the left leg, compartment syndrome of the right leg, tendonitis of the right knee and tendonitis of the left knee in an August 2009 rating decision. Subsequently, in a June 2011 rating decision, the RO granted a separate noncompensable evaluation for a scar of the right leg and a separate 10 percent rating for "scar of the left lower leg with peripheral neuropathy." In other words, it appears the RO has implicitly granted service connection for peripheral neuropathy.
In this case, the case turns upon whether the Veteran has a disability manifested by numbness of the feet separate and apart from the service-connected compartment syndrome of the bilateral legs, tendonitis of the bilateral knees, bilateral scars and peripheral neuropathy of the left leg.
The evidence includes service treatment records, VA treatment records and reports of VA examinations. Significantly, in June 2008, an electromyologram (EMG) study was performed on the Veteran at the Neurology Service of the Medical School of the University of Kansas, which indicated that the Veteran's motor, sensory and proximal conduction were all normal. The concentric needle examination was normal, and there was no evidence of radiculopathy or focal entrapment noted.
The Veteran was afforded VA examinations in November 2008. During the general VA examination the Veteran reported bilateral leg pain beginning with recruit training and increasing over time. He described varying diagnoses including compartment syndrome and complex regional pain syndrome. He reported a history of a 4 compartment fasciotomy of the left leg performed in November 2007 and a right leg fasciotomy of the right leg in February 2008. An EMG in June of 2008 was described as normal and x-rays of the tibias and knees performed in May 2008 were also negative. He described constant pain in the calf area of both legs but no swelling. Clinical examination revealed two scars on each leg measuring 3 inches each in length. There was medial tenderness over the medial scars and no tenderness over the lateral scars. There was no swelling of the scars and no numbness. There was no atrophy of the calf areas. There was no apparent numbness of the legs and circulation was intact with no edema. There was no specific tenderness or swelling over the tibias. The diagnoses included status following prolonged leg pain, chronic leg pain of undetermined etiology, and reported the stress fracture was not confirmed. The examiner explained that the status following prolonged leg pain was more likely than not exercise induced compartment syndrome in both legs as there was no evidence of regional pain syndrome or stress fractures, and that the chronic leg pain of undetermined etiology also more likely than not would have a diagnosis of mild compartment syndrome with residual pain and would result in one-half normal ankle motion because of pain and weakness.
During a November 2008 Neurology evaluation, the Veteran reported that he had pain from his toes to his ankles when he ran during boot camp. He indicated the onset of numbness in his feet and lower legs was in July 2006 and occurred with sitting standing walking or running. If he stopped activity the numbness and tingling resolved. He explained that after he underwent surgery for his bilateral compartment syndrome the symptoms continued to worsen and he still had pain in his toes to above his ankles with numbness and tingling occurring intermittently. He further described an inability to run due to numbness in his feet and pain that occurred the next day. On neurological examination motor examination reflected normal muscle strength and tone in the lower extremities and no involuntary movements or tremors, reflexes were 2+ and symmetric. Sensory examination revealed tenderness over the medial and lateral lower extremity scars but no abnormalities or asymmetries of appearance of the legs or feet including changes in color, temperature, skin, hair, nails, or sweating. There was no tinel's signs over the scars. He initially reported normal pin sensation in the lower extremities but hen reported reduced pin sensation throughout most of the lower legs. Vibratory sensation was normal and variable responses were provided on proprioception. The examiner found no neurological diagnosis to account for the Veteran's reported bilateral foot numbness and recommended the Veteran see an orthopedic surgeon to evaluate the compartment syndrome.
A November 2008 internal medicine examination reflected the complaints of pain and swelling particularly after activity in spite of the fasciotomy of the legs. His ability to walk had been restricted significantly. He reported slight numbness and tingling in the toes within a few minutes of walking and then starts to have pain in the plantar aspect of the feet and anterior aspects of both lower legs, subsiding with interruption of the physical activity. The examiner reviewed the service records, October 2007 MRI and June 2008 EMG. The examiner described residual scars that were tender to palpation and further noted that the left leg lateral scar was surrounded by insensitive skin from the interruption of superficial sensory nerves. The examiner reported that review of systems was remarkable for chronic pain below the knee joints on both legs aggravated greatly by walking with peripheral edema and numbness of both feet. The examiner stated that these symptoms have been attributed to chronic compartment syndrome which resulted from acute compartment syndrome in both lower extremities, exercise induced nontraumatic.
In October 2010 the Veteran was afforded another VA examination. The examiner reviewed and summarized the evidence in the claims file and reported that the current complaints involved pain and resulted in limitation resulting in him being unable to work out below the waist. He denied foot problems other than occasional numbness like the feet were falling asleep. The examiner indicated the muscles involved were muscles of the calf, or muscle group XI. The associated injury form the Veteran's surgery was a severed sensory nerve in the left lateral lower leg leaving the Veteran with an area of numbness. The examiner described 2 scars on each lower leg and indicated the scars were not painful or symptomatic but bothered the Veteran psychologically. Examination of the peripheral nerves reflected that the Veteran complained of numbness of the left leg surrounding the scar from the fasciotomy beginning after the compartment syndrome surgery. The Veteran explained if he bumped the lower leg he was unable to feel anything in the skin but could feel muscle plain. There were flare-ups with respect to the severed nerve when he traumatizes the lower lateral leg. These flare-ups consisted of pain and weakness, fatigue and some functional loss. There was no treatment for the peripheral nerves. The symptoms were noted to be dysesthesias and if he traumatizes the lower lateral left leg he had a rather severe pain and unusual weird feeling in the skin that he is unable to feel any trauma to the skin, only the underlying muscles. This causes him to be overly cautious. Clinical examination reflected a scar of the right leg that had slight increased pigment and was nontender slightly depressed and slightly hyperpigmented. The lateral leg scar of the right was flat and even, not depressed and not adherent. There was tenderness about the lower third of each lower leg but no swelling. The left medial scar was superficial slightly pigmented flat with surrounding skin and the lateral scar was level with the skin. The neurological examination revealed a 21x8 patch of skin about the left lateral incision beginning about midcalf and extending downward that was devoid of sensation. Deep tendon reflexes were 2/5 and 3/5 bilaterally.
Significantly, the examiner concluded with diagnoses of bilateral exercise induced compartment syndrome, bilateral chondromalacia of the knees, peripheral neuropathy of the left lower leg, and the result of a surgical procedure, sensory in nature with absent sensation. The examiner further noted that the Veteran did not have complaints in the feet but rather knee complaints that were related to the compartment syndrome.
A May 2011 addendum opinion clarified that none of the scars were tender to palpation and indicated that while the left leg had a zone of lack of sensation that was 21x8 cm in size extending downward from mid-calf, none of the actual scars were devoid of sensation.
In short, the evidence clearly reflects four separate disabilities of the left leg and three separate disabilities of the right leg. There is the bilateral compartment syndrome, bilateral knee problems, bilateral scars, and peripheral neuropathy of the left leg. All of these disabilities are presently service-connected. The evidence fails to reflect any diagnoses related to the complaints of numbness of the feet unrelated to the above. A threshold requirement for the granting of service connection is evidence of a current disability. In the absence of evidence of a current disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there are no disabilities that have not been service-connected, there is no disability that can be separately awarded service connection.
Furthermore, the Board notes to the extent to which the Veteran has numbness of the feet unrelated to his presently service-connected disabilities and not yet diagnosed as a separate and distinct disability, such symptom would also be encompassed in the evaluation of the service-connected compartment syndrome. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (Observing that when it is not possible to separate the effects of a service-connected condition and a non- service-connected condition, the provisions of 38 C.F.R. § 3.102 mandates that reasonable doubt on any issue was to be resolved in the Veteran's favor, and that all signs and symptoms be attributed to the service- connected condition).
Right Leg Stress Fracture
The Veteran asserts entitlement for a right leg stress fracture due to his active service. A review of the Veteran's service records show that he was diagnosed with a stress fracture in service. In May 2007, a bone scan was performed on the Veteran and the impression of the three-phase bone scan was a finding consistent with stress fracture of the lower left tibia. As a result of the stress fracture diagnosis, the Veteran's right leg was placed in a cast for approximately six weeks. There is no clear explanation why the right leg was placed in a cast after the left leg was diagnosed with the stress fracture. The Veteran was later diagnosed with bilateral compartment syndrome after his leg pain persisted once the cast was removed.
The Veteran underwent a VA examination in October 2010 to examine his leg disability as well as his complaints of a right leg stress fracture. The examiner noted that there is a question of bilateral stress fractures of the tibia, but this could not be confirmed upon review of the Veteran's service and medical records. Contemporaneous x-rays of the right tibia and fibula were normal and there was no diagnosis of a current disability of a right leg stress fracture.
As there is no current diagnosis of a stress fracture, residuals of a stress fracture or a diagnosis of a stress fracture that is not related to his later diagnosis of bilateral compartment syndrome of the legs, the Board finds that it cannot grant service connection for a right leg stress fracture. See McClain v. Nicholson, 21 Vet. App. 319 (2007) (a "current disability" exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim). While the Board does not question the Veteran's lay statements regarding his in-service diagnosis of a stress fracture in his left leg, and perhaps his right leg as well, in the absence of proof of a current disability there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).
The evidence of record does not support a current diagnosis of a stress fracture of either leg or that the Veteran is suffering from residuals of any stress fracture he was diagnosed with in service that is unrelated to his service connected bilateral leg compartment syndrome. As such, the Board finds that the preponderance of the evidence is against the Veteran's claim. Consequently, the benefit of the doubt rule does not apply, and the claim must be denied. 38 U.S.C.A. § 5107; Gilbert, 1 Vet. App. at 53.
Increased Rating
Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).
Where, as in the present case, entitlement to compensation has already been established and an increase in disability rating is at issue, the Veteran's present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged rating" (i.e., assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).
Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.40, 4.45; see also DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995). Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. The factors involved in evaluating, and rating, disabilities of the joints include weakness; fatigability; incoordination; restricted or excess movement of the joint, or pain on movement. 38 C.F.R. § 4.45.
The Veteran has been assigned a 10 percent rating for his bilateral leg disability under the diagnostic code 8722 for diseases of the peripheral nerves. However, the Board finds that the Veteran's disability is more appropriately evaluated pursuant to Diagnostic Codes 5311, pertaining to Muscle Group XI. See Butts v. Brown, 5 Vet. App. 532, 538 (the assignment of a particular diagnostic code is "completely dependent on the facts of a particular case"); see also Tedeschi v. Brown, 7 Vet. App. 411, 414 (1995).
Specifically, the diagnosis in this case is compartment syndrome and the symptoms of compartment syndrome include pain, paresthesia, paralysis, pallor, pulselessness, and poikolothermia. The first signs of compartment syndrome are numbness, tingling, and paresthesia. See Campbell's Operative Orthopaedics 2737 -2741 (S. Terry Canale and James H. Beaty eds., 11th ed. vol. 3 2008). The Board notes that the Veteran's main complaint is not related to the nerves, but rather encompasses muscle pain, weakness, numbness, and pain. Furthermore, the October 2010 VA examiner noted that the Veteran's leg disability involves Muscle Groups XI. Accordingly, the Board finds that the diagnostic codes for muscle injuries, which contemplate muscle, nerve, joint, and scar injuries and consider cardinal signs and symptoms of loss of power, weakness, fatigue, fatigue-pain, impairment of coordination and uncertainty of movement better approximates the symptoms associated with the Veteran's compartment syndrome.
The muscles involved in Muscle Group XI include the posterior and lateral crural muscles, and muscles of the calf: triceps surae, tibialis posterior, peroneus longus, peroneus brevis, flexor hallucis longus, flexor digitorum longus, popliteus and plantaris. The functions affected by these muscles include propulsion, plantar flexion of the foot, stabilization of the arch, flexion of the toes and flexion of the knee. Muscle disability under this provision is evaluated as follows: slight (0 percent); moderate (10 percent), moderately severe (20 percent), and severe (30 percent).
In evaluating muscle disabilities, an open comminuted fracture with muscle or tendon damage will be rated as a severe injury of the muscle group involved unless, for locations such as in the wrist or over the tibia, evidence establishes that the muscle damage is minimal. 38 C.F.R. § 4.56(a). For VA rating purposes, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement. 38 C.F.R. § 4.56(c).
Under 38 C.F.R. § 4.56(d), disabilities resulting from muscle injuries shall be classified as slight, moderate, moderately severe or severe. A slight disability of the muscles is characterized by simple wound of muscle without debridement or infection. A slight disability of the muscle is reflected by history and complaint such as service department records of a superficial wound with brief treatment and return to duty. Healing of slight muscle injuries is followed by good functional results. A slight disability of muscles includes none of the cardinal signs or symptoms of muscle disability as defined in 38 C.F.R. 4.56 (c). Objective findings characteristic of slight muscle disability include minimal scarring, no evidence of fascial defect, atrophy, or impaired tonus, no impairment of function, and no metallic fragments retained in muscle tissue. 38 C.F.R. § 4.56 (d)(1).
A moderate disability of the muscles is characterized by a through and through or deep penetrating wound of short track from a single bullet, small shell or shrapnel fragment, without the explosive effect of a high velocity missile, residuals of debridement, or prolonged infection. History and complaint characteristic of moderate disability of muscle includes service department records or other evidence of in-service treatment for the wound. For a finding of moderate disability of muscle, there should be record of consistent complaint of one or more of the cardinal signs and symptoms of muscle disability as defined in 38 C.F.R. § 4.56 (c), particularly lowered threshold of fatigue after average use, affecting the particular functions controlled by the injured muscles. Objective findings characteristic of moderate muscle disability include small or linear entrance and (if present) exit scars, indicating a short track of the missile through muscle tissue. For moderate muscle injury, there should be some loss of deep fascia or muscle substance or impairment of muscle tonus and loss of power or lowered threshold of fatigue when compared to the sound side. 38 C.F.R. § 4.56(d)(2).
A moderately severe disability of muscles is characterized by a through and through or deep penetrating wound by a small high velocity missile or large low-velocity missile, with debridement, prolonged infection, or sloughing of soft parts, and intermuscular scarring. History and complaint characteristic of moderately severe muscle injury includes service department records or other evidence showing hospitalization for a prolonged period for treatment of wound. A showing of moderately severe muscle disability should include a record of consistent complaints of cardinal signs and symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c) and, if present, evidence of inability to keep up with work requirements. Objective findings characteristic of moderately severe muscle disability include entrance and (if present) exit scars indicating the track of the missile through one or more muscle groups. Indications on palpation of loss of deep fascia, muscle substance, or normal firm resistance of muscles compared with the sound side are also indicative of moderately severe muscle disability. Tests of strength and endurance compared with the sound side should demonstrate positive evidence of impairment. 38 C.F.R. § 4.56(d)(3).
Severe disability of muscles is characterized by a through and through or deep penetrating wound due to high-velocity missile, or large or multiple low velocity missiles, or with shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring. History and complaint characteristic of severe disability of muscle includes service department record or other evidence showing hospitalization for a prolonged period for treatment of wound. Record of consistent complaint of cardinal signs and symptoms of muscle disability as defined in 38 C.F.R. § 4.56(c), worse than those shown for moderately severe muscle injuries, and, if present, evidence of inability to keep up with work requirements. Objective findings characteristic of severe muscle disability include ragged, depressed and adherent scars indicating wide damage to muscle groups in missile track. Palpation shows loss of deep fascia or muscle substance, or soft flabby muscles in wound area. Muscles swell and harden abnormally in contraction. Tests of strength, endurance, or coordinated movements compared with the corresponding muscles of the uninjured side indicate severe impairment of function. If present, the following are also signs of severe muscle disability: (A) X-ray evidence of minute multiple scattered foreign bodies indicating intermuscular trauma and explosive effect of the missile. (B) Adhesion of scar to one of the long bones, scapula, pelvic bones, sacrum or vertebrae, with epithelial sealing over the bone rather than true skin covering in an area where bone is normally protected by muscle. (C) Diminished muscle excitability to pulsed electrical current in electrodiagnostic tests. (D) Visible or measurable atrophy. (E) Adaptive contraction of an opposing group of muscles. (F) Atrophy of muscle groups not in the track of the missile, particularly of the trapezius and serratus in wounds of the shoulder girdle. (G) Induration or atrophy of an entire muscle following simple piercing by a projectile. 38 C.F.R. § 4.56(d)(4).
In the rating action on appeal, service connection was granted for bilateral leg compartment syndrome, which was diagnosed in service. The RO assigned a 10 percent evaluation for the Veteran's bilateral leg disability. The Veteran asserts that his bilateral leg disability is more severe than is represented by the currently assigned 10 percent rating. In his substantive appeal, he complains of extreme difficulty standing or sitting for any length of time and problems getting out of bed. Further, the Veteran reports that he is constant pain every day with occasional flare-ups that exacerbate the pain.
Upon review of the evidence of record, the Board finds that the Veteran's service-connected leg disability has resulted in moderately severe impairment of the Muscle Group XI. The Veteran was first diagnosed with a bilateral leg disability in October 2007. As a result of the diagnosis, the Veteran underwent a 4-compartment fasciotomy on the left leg in November 2007 and another on the right leg in February 2008. After surgery, the Veteran's condition did not improve. In June 2008, the Veteran had an EMG study performed on his right leg and the results were normal. X-rays taken in May 2008 were also normal. In November 2008, the Veteran was evaluated at the North Chicago VAMC. He presented with symptoms of constant pain in both knees with the left being worse. He had stiffness in his legs every morning and constant bilateral calf pain. The examiner noted that he walks without difficulty. There is 3 inch scar on each leg were the surgery was performed, with medial tenderness over the scars. There was no atrophy of the calf muscles noted and the knees had full flexion of 150 degrees. The knees had no swelling otherwise and no tenderness. The examiner diagnosed the Veteran with exercised-induced compartment syndrome in both legs.
In October 2010, the Veteran underwent another VA examination on his bilateral leg disability. At this exam the examiner, review the Veteran's medical history. The Veteran presented to the examiner with bilateral leg pain in muscle group XI. It was noted by the examiner that the associated injury from the Veteran's surgical procedures in 2007 and 2008 was a severed sensory nerve in the left lateral lower leg, leave the Veteran with an area of numbness. The Veteran reported to be in constant pain with the occasional flare-ups caused by any kind of trauma to either lower leg. He is also limited his activity because of fatigue of the lower legs. The Veteran told the examiner that the pain and fatigue render him unable to move his legs through a complete range of motion, and when he stands up, he has to make a twisting motion with lower extremity, further limiting the use of his legs. Additionally, after surgery the pain in the Veteran's knees increased greatly, further limiting the use of his legs. The Veteran was previously prescribed Neurontin but this anti-inflammatory agent did help with the pain. The pain in his legs increased severely since the examination in November 2008. Standing is becoming more difficult, and as of the examination in October 2010, he walks with a limp due to the pain in his right leg and has an antalgic gait due to his leg disability. The examiner continued the bilateral exercised induced compartment syndrome diagnosis.
In sum, the Board concludes that the evidence of record supports a finding of moderately severe muscle impairment such as to warrant a 20 percent evaluation under Diagnostic Code 5311 for each lower extremity. The Board may assign a higher the disability more closely approximates the criteria for the higher rating. There is a marked change in the Veteran's disability from 2008 to 2010. The Veteran's pain has increased and the functional use of his legs is diminishing. The Veteran's ability to use his legs with normal excursion, strength, speed, coordination and endurance has been greatly reduced by his disability. Further, the Veteran was forced to leave the Marine Corp against his wishes due to his disability. Additionally, the cardinal signs and symptoms of muscle disability are loss of power, weakness, lowered threshold of fatigue, fatigue-pain, impairment of coordination and uncertainty of movement and there is evidence that the Veteran is suffering from all these signs or symptoms. The Veteran's moderately severe disability of muscle group XI is characterized by surgery on both legs, severe pain, numbness of the legs and feet, evidence of being discharged from work due to his disability, and impairment of function.
The Veteran is not, however, entitled to a 30 percent evaluation for any period of time covered by the appeal. Diagnostic Code 5311 makes clear that a 30 percent disability rating, the highest schedular rating available under this provision, is assigned for a "severe" disability. The Veteran does not contend nor does the evidence reflect that the Veteran's bilateral lower extremity compartment syndrome resulted from a through and through or deep penetrating wound. Likewise, there is no indication that the service-connected right lower extremity compartment syndrome was manifested by shattering bone fracture or open comminuted fracture with extensive debridement, prolonged infection, or sloughing of soft parts, intermuscular binding and scarring or requiring prolonged hospitalization. The evidence does not reflect ragged, depressed, and adherent scars indicating wide damage to muscle groups. There is no evidence of loss of deep fascia or muscle substance, soft flabby muscles in the wound area, or swelling and hardening of the muscles abnormally in contraction. There is also no evidence of minute, multiple scattered foreign bodies indicating intermuscluar trauma, scar adhesion, diminished muscle excitability to pulsed electrical current, atrophy, adaptive contraction of opposing muscle groups, or induration. In fact, the November r2008 VA examination specifically noted there was no atrophy.
To the extent that the Veteran's service-connected right lower extremity compartment syndrome resulted in cardinal signs and symptoms of muscle disability, including swelling, loss of muscle strength, endurance, and/or coordinated movements, the currently assigned initial 20 percent disability rating accounts for these symptoms. Additionally, the Veteran was awarded separate disability ratings for scars of the right lower leg, a scar of the left lower leg with peripheral neuropathy, and tendonitis of the bilateral knees. Accordingly, an initial 20 percent evaluation under Diagnostic Code 5311 is not warranted for any period of time covered by this appeal.
Resolving all doubt in the Veteran's favor, an initial evaluation of 20 percent, but not higher, for right lower extremity compartment syndrome is warranted for the entire period of time covered by the appeal 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).
Additional Consideration
The Board considered whether a separate evaluation is warranted as a result of functional loss due to pain. In the Veteran's case, a separate evaluation is not warranted. The effects of pain reasonably shown to be due to the Veteran's service-connected bilateral leg disabilities are contemplated in the currently assigned 20 percent ratings. Even with consideration of the finding of objective evidence of pain after repetitive motion, reported by the October 2010 VA examiner, there is no indication that pain, due to a bilateral leg disability caused functional loss greater than that contemplated by the currently assigned 30 percent evaluation. 38 C.F.R. §§ 4.40, 4.45; DeLuca.
The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extra-schedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors, which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993).
According to the regulation, an extraschedular disability rating is warranted based upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2013). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993).
Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must first determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating.
With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disabilities is inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability on appeal with the established criteria found in the rating schedule for these disabilities show that the rating criteria reasonably describes the Veteran's disability level and symptomatology, namely pain, functional loss and weakness, fatigue, incoordination and lack of endurance and numbness.
As the first prong of Thun has not been satisfied, the Board therefore has determined that referral of this case for extra-schedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted.
Entitlement to total disability rating based upon individual unemployability (TDIU) is an element of all increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447 (2009); Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case, neither the Veteran nor the record raises the issue that he is unemployable due solely to his service-connected bilateral leg disability. There is no medical evidence that the Veteran's bilateral leg disability has markedly interfered with his current employment, and he has not stated that he is unable to perform his current duties due to his service-connected disability. Therefore, remand or referral of a claim for TDIU is not necessary, as there is no evidence of unemployability due to the service-connected disability.
Duty to Notify and Assist
When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, a letter was sent in October 2008 that provided the required notice.
VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2013).
Service treatment records are associated with claims file. All post-service treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran has been afforded VA examinations in November 2008 and October 2010 in relation to his leg disability, right leg stress fracture and bilateral foot numbness disabilities. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2013); Wells v. Principi, 326 F.3d 1381 (Fed. Cir. 2003). These VA examinations are adequate for the purposes of evaluating the Veteran's disability claims, as they involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran, and provide an adequate discussion of relevant symptomatology. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).
In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159.
ORDER
Entitlement to service connection for bilateral foot numbness is denied.
Entitlement to service connection for a right leg stress fracture is denied.
Entitlement of an initial evaluation of 20 percent for post-operative four compartment fasciotomy, compartment syndrome of the right leg is granted.
Entitlement of an initial evaluation of 20 percent for post-operative four compartment fasciotomy, compartment syndrome of the left leg is granted.
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H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs